and Anr Vs. R.G. High Court of Karnataka and Anr.  Insc 129 (13 February 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
(Arising out of SLP (Crl.) No.1762 of 2006) Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a Division Bench of
the Karnataka High Court accepting the reference made under Section 366 of the
Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.') and confirming death
sentence awarded to the appellants in respect of offences punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
'IPC') and sentence of 10 years and fine of Rs.25,000/- with default
stipulation for the offence punishable under Section 376 read with Section 34
IPC awarded by the learned District and Sessions Judge, Chamarajanagara.
Background facts which led to the trial of the accused persons are
essentially as follows:
Jayamma, (PW.1) is the resident of Badrenahalli village in Kollegal Taluk.
She resided with her husband, and children Raju (PW.2), Nagarajamma (PW.10) and
Shivamma (hereinafter referred to as the 'deceased'). Both the accused are
residents of the same village. The accused-aged about 20 and 22 years
respectively were sexually obsessed youngsters.
Few months prior to the incident, relating to the present appeal they
attempted to commit rape on Lakkamma [daughter of Puttegowda (PW.7)], but were
unsuccessful. For that act, they were admonished. Later, they attempted to
commit rape on PW.10 (daughter of PW.1). PW.10 was also successful in escaping
from their clutches. Though in both the incidents, the aggrieved persons wanted
to lodge police complaints, against the accused, at the instance of village
elders and family members of these accused, instead of lodging criminal cases,
only Panchayath of village elders was called on each occasion and the accused
were directed to mend their ways. But this warning had no effect on them.
Emboldened by escape from punishment in those two incidents, they committed
rape on the deceased a young girl of hardly 18 years and to avoid detection,
committed heinous and brutal act of her murder. On the morning of 15.10.2001,
deceased Shivamma went to the family land situated near her house to dump
manure. As she did not return, PW.1 went in search of her after some time. When
Shivamma was not seen in the land, PW.1 began to call her by name. Suspecting
some untoward incident, when PW.1 went near the spot, she saw the body of the
deceased lying on the ground with clothes disarrayed. Noticing that Shivamma
was dead, PW.1 raised hue and cry and went towards the village calling people
for help. Attracted by her cries, her son PW.2 and other villagers including
Chikkiregowda (PW.3) came to the spot and on learning about the incident,
especially the fact that the accused had been seen earlier at the spot where
the dead body was found and had on detection run away, they went in search of
the accused. In the meantime, Narayana Gowda (PW.5) the brother of PW.1
(maternal uncle of the deceased) who also resides in the same village came to
the house of PW.1 and on suspecting the role of the accused in the rape and
murder of Shivamma, wrote down the statement of PW.1 and after taking her
L.T.I., took the same to the jurisdictional police at Rampur police station.
M.K. AIi, the S.H.O. of Rampur police station (PW.20) on receipt of the
information of the crime, after accepting the written complaint as per Ex.P.1,
registered a case in Crime No.86/01 for the offences punishable u/s 376, 302
both read with Section 34 of the IPC against these two accused and took up
After registering the case, preparing the F.I.R., sending the same, the
superior officers and the Court, the Investigating officer along with staff,
went to the place of the incident and held the necessary mahazars like spot
mahazar, seizure of certain articles found near the scene of offence. After
inquest proceedings, the body of the deceased was taken for autopsy.
In the meantime, on learning about the culpability of the accused in the
crime, several villagers went in search of the accused. Accused No.1 was found
at the bus stand while attempting to board a bus. He was brought and was
interrogated. His disclosure confirmed the involvement of accused No.2 as the
co-participant in the crime. People went in search of the second accused who
was found hiding in the house. Both of them were brought and kept in
confinement in the house of one Shivamma near the spot. They admitted to their
guilt. On arrival of the investigating officer, after the preliminary
investigation as already noted, the accused were taken into custody and they
were sent for medical examination. The post-mortem examination on the dead body
of Shivamma was carried out by Dr. Pushpalatha, PW.11 along with Dr.Basavaraju
PW.12. It confirmed rape on the deceased and that she had been killed by
strangulation. The accused were examined by the doctor PW.12 who noted nail
scratch marks on their bodies. Syed Ameer Pasha, (PW.13) a photographer was
summoned and he took photographs of the scene of offence as well as the dead
body. Similarly Siddappa (PW.15), Junior Engineer prepared the sketch of the
scene of offence as per Ex.P.15. After recording the statements of material
witnesses including the relatives and the other villagers who could throw light
on the incident and after receipt of all material reports, charge sheet was
filed against these two accused for offences punishable under Sections 376 read
with 34 and 302 read with 34 of the IPC.
Twenty witnesses were examined to further the prosecution version. In their
examination under Section 313 Cr.P.C. the accused persons except denying their
involvement did not offer explanation of particular defence. The trial Court
after considering the evidence on record recorded conviction and awarded
sentence as aforenoted. Since the death sentence had been awarded by the trial
Court reference was made to the High Court in terms of Section 366 Cr.P.C. for
confirmation of the death sentence. The accused-appellants also preferred
appeal in terms of section 374 (2) Cr.P.C. The circumstances on which the trial
Court placed reliance for recording conviction are as follows:
Accused and deceased were last seen
together near scene of offence.
The movements of the accused.
The rape and murder of the victim.
The immediate apprehension of the
accused by the villagers and their extra judicial confession.
Medical evidence in respect of accused
indicating resistance put forth by the victim and lastly;
The conduct of the accused prior to
and after the crime.
Considering the heinous nature of the crime, the trial court held it to be
falling in the rarest of the rare category and awarded death sentence.
The High Court as noted above confirmed the conviction and the sentence
In support of the appeal learned counsel for the appellants submitted that
the case is based on circumstantial evidence and the circumstances highlighted
do not present a complete chain to warrant any inference about the guilt of the
accused. Alternatively, it is submitted that the death sentence is not
Learned counsel for the appellant-State on the other hand submitted that the
circumstances highlighted clearly establish the guilt of the accused and no
exceptions can be taken to the reasons indicated by the Trial Court in the
well- reasoned judgment. The evidence has also been analysed in great detail by
the High Court and, therefore, no question of any interference is called for
with the conviction recorded. So far as the sentence is concerned it is pointed
out that the accused persons are hardened criminals. They had made earlier
attempts of rape of two different girls i.e. daughter of PW.7 and PW.1.
PWs. 11 and 12 are the doctors who conducted the autopsy and it is PW.12 who
has also medically examined the accused and given the wound certificates. PW.13
is the photographer who took the photograph of scene of offence and the dead
body. PW.15 is the Junior Engineer who has prepared the sketch of the scene of
offence as per Ex.P.15 and PW.14 is the Village Accountant who has furnished
of the lands in question. PWs. 18 and 19 have been examined by the
prosecution to show the earlier attempts of the accused to molest other girls
(Lakkamma and Nagarajamma) and their participation in the panchayath held by
the village elders in that regard. However, it is to be noted that as they did
not support the prosecution, they have been treated as hostile witnesses and in
spite of searching cross-examination by the prosecution they have stuck to
their contrary version. The remaining witnesses are mahazar witnesses and the
members of the investigation team.
To show the presence of the accused at the time and place almost near the
victim, the prosecution has relied upon the evidence of Puttegowda, PW.6, Jayamma
(PW.1) and two independent witnesses, Kalamma (PW8) and Rudramma (PW.9).
Puttegowda (PW.6) states that on the date of the incident while he was taking
tea in the morning, he saw the deceased going towards her family land carrying
basket of manure. He also saw that these two accused were following her from a
little distance. He states that after some time he also saw Jayamma (PW.1) the
mother of the deceased going towards the land and coming back raising hue and
cry over the murder of her daughter Shivamma by the accused and her seeing them
running away from the spot. The evidence of this witness, so far as this aspect
is concerned, except the futile suggestion that this witness is speaking
falsehood as he belongs to the group of Narayana Gowda and opposed to the
accused has remained unshaken.
It has been consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any other
person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063), Eradu v.
State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State of Karnataka (AIR
1983 SC 446), State of U.P. v. Sukhbasi (AIR 1985 SC 1224), Balwinder Singh v.
State of Punjab (AIR 1987 SC 350) and Ashok Kumar Chatterjee v. State of M.P.
(AIR 1989 SC 1890). The circumstances from which an inference as to the guilt
of the accused is drawn have to be proved beyond reasonable doubt and have to
be shown to be closely connected with the principal fact sought to be inferred
from those circumstances.
In Bhagat Ram v. State of Punjab (AIR 1954 SC 621) it was laid down that
where the case depends upon the conclusion drawn from circumstances, the
cumulative effect of the circumstances must be such as to negative the
innocence of the accused and bring home the offences beyond any reasonable
We may also make a reference to a decision of this Court in C. Chenga Reddy
v. State of A.P. (1996 (10) SCC 193), wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is
that the circumstances from which the conclusion of guilt is drawn should be
fully proved and such circumstances must be conclusive in nature. Moreover, all
the circumstances should be complete and there should be no gap left in the
chain of evidence. Further, the proved circumstances must be consistent only
with the hypothesis of the guilt of the accused and totally inconsistent with
In Padala Veera Reddy v. State of A.P. (AIR 1990 SC 79) it was laid down
that when a case rests upon circumstantial evidence, such evidence must satisfy
the following tests:
the circumstances from which an
inference of guilt is sought to be drawn, must be cogently and firmly
those circumstances should be of a
definite tendency unerringly pointing towards guilt of the accused;
the circumstances, taken
cumulatively, should form a chain so complete that there is no escape from the
conclusion that within all human probability the crime was committed by the
accused and none else; and (4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation of any other hypothesis
than that of guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent with his
In State of U.P. v. Ashok Kumar Srivastava (1992 Crl. LJ 1104) it was pointed
out that great care must be taken in evaluating circumstantial evidence and if
the evidence relied on is reasonably capable of two inferences, the one in
favour of the accused must be accepted. It was also pointed out that the
circumstances relied upon must be found to have been fully established and the
cumulative effect of all the facts so established must be consistent only with
the hypothesis of guilt.
Sir Alfred Wills in his admirable book `Wills' Circumstantial Evidence'
(Chapter VI) lays down the following rules specially to be observed in the case
of circumstantial evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best evidence must be adduced
which the nature of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other reasonable hypothesis than
that of his guilt; and (5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted.
There is no doubt that conviction can be based solely on circumstantial
evidence but it should be tested by the touchstone of law relating to
circumstantial evidence laid down by this Court as far back as in 1952.
In Hanumant Govind Nargundkar v. State of M.P. (AIR 1952 SC 343) it was
"It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt is
to be drawn should be in the first instance be fully established, and all the
facts so established should be consistent only with the hypothesis of the guilt
of the accused. Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as to show that within all
human probability the act must have been done by the accused."
A reference may be made to a later decision in Sharad Birdhichand Sarda v.
State of Maharashtra (AIR 1984 SC 1622). Therein, while dealing with
circumstantial evidence, it has been held that the onus was on the prosecution
to prove that the chain is complete and the infirmity of lacuna in the
prosecution cannot be cured by a false defence or plea. The conditions
precedent in the words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They are:
the circumstances from which the
conclusion of guilt is to be drawn should be fully established. The
circumstances concerned must or should and not may be established;
the facts so established should be
consistent only with the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis except that the accused
the circumstances should be of a
conclusive nature and tendency;
they should exclude every possible
hypothesis except the one to be proved; and (5) there must be a chain of
evidence so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
When the evidence on record is analysed in the background of principles
highlighted above, the inevitable conclusion is that the prosecution has
established its accusations.
The residual question relates to sentence. In Bachan Singh v. State of
Punjab (1980 (2) SCC 684) and Machhi Singh and Ors. v. State of Punjab (1983
(3) SCC 470) the guidelines which are to be kept in view when considering the
question whether the case belongs to the rarest of the rare category for
awarding death sentence were indicated.
In Machhi Singh's case (supra) it was observed:
"The following questions may be asked and answered as a test to
determine the "rarest of the rare" case in which death sentence can
be inflicted:- (a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to
impose death sentence even after according maximum weightage to the mitigating
circumstances which speak in favour of the offender? The following guidelines
which emerge from Bachan Singh case (supra) will have to be applied to the
facts of each individual case where the question of imposition of death
sentence arises: (SCC p. 489, para 38):-
The extreme penalty of death need not
be inflicted except in gravest cases of extreme culpability.
Before opting for the death penalty
the circumstances of the `offender' also require to be taken into consideration
along with the circumstances of the `crime'.
Life imprisonment is the rule and
death sentence is an exception. Death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate punishment having regard to
the relevant circumstances of the crime, and provided, and only provided, the
option to impose sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the crime and all the
A balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
In rarest of rare cases when collective conscience of the community is so
shocked that it will expect the holders of the judicial power centre to inflict
death penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty, death sentence can be awarded. The
community may entertain such sentiment in the following circumstances:
When the murder is committed in an
extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to
arouse intense and extreme indignation of the community.
When the murder is committed for a motive which evinces total depravity
and meanness; e.g. murder by hired assassin for money or reward or a
cold-blooded murder for gains of a person vis-`-vis whom the murderer is in a
dominating position or in a position of trust, or murder is committed in the
course for betrayal of the motherland.
When murder of a member of a
Scheduled Caste or minority community etc., is committed not for personal
reasons but in circumstances which arouse social wrath, or in cases of 'bride
burning' or `dowry deaths' or when murder is committed in order to remarry for
the sake of extracting dowry once again or to marry another woman on account of
When the crime is enormous in
proportion. For instance when multiple murders, say of all or almost all the
members of a family or a large number of persons of a particular caste,
community, or locality, are committed.
When the victim of murder is an innocent child, or a helpless woman or
old or infirm person or a person vis-`-vis whom the murderer is in a dominating
position or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light
of the aforesaid propositions and taking into account the answers to the
questions posed by way of the test for the rarest of rare cases, the
circumstances of the case are such that death sentence is warranted, the court
would proceed to do so."
A convict hovers between life and death when the question of gravity of the
offence and award of adequate sentence comes up for consideration. Mankind has
shifted from the state of nature towards a civilized society and it is no
longer the physical opinion of the majority that takes away the liberty of a
citizen by convicting him and making him suffer a sentence of imprisonment.
Award of punishment following conviction at a trial in a system wedded to the
rule of law is the outcome of cool deliberation in the court room after
adequate hearing is afforded to the parties, accusations are brought against
the accused, the prosecuted is given an opportunity of meeting the accusations
by establishing his innocence. It is the outcome of cool deliberations and the
screening of the material by the informed man i.e. the Judge that leads to
determination of the lis.
The principle of proportion between crime and punishment is a principle of
just desert that serves as the foundation of every criminal sentence that is
justifiable. As a principle of criminal justice it is hardly less familiar or
less important than the principle that only the guilty ought to be punished.
Indeed, the requirement that punishment not be disproportionately great, which
is a corollary of just desert, is dictated by the same principle that does not
allow punishment of the innocent, for any punishment in excess of what is
deserved for the criminal conduct is punishment without guilt.
The criminal law adheres in general to the principle of proportionality in
prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are raised by the
special facts of each case. Judges in essence affirm that punishment ought
always to fit the crime; yet in practice sentences are determined largely by
Sometimes it is the correctional needs of the perpetrator that are offered
to justify a sentence, sometimes the desirability of keeping him out of
circulation, and sometimes even the tragic results of his crime. Inevitably
these considerations cause a departure from just desert as the basis of
punishment and create cases of apparent injustice that are serious and
Proportion between crime and punishment is a goal respected in principle,
and in spite of errant notions, it remains a strong influence in the
determination of sentences.
Anything less than a penalty of greatest severity for any serious crime is
thought to be a measure of toleration that is unwarranted and unwise. But in
fact quite apart from those considerations that make punishment unjustifiable
when it is out of proportion to the crime, uniformly disproportionate
punishment has some very undesirable practical consequences.
Considering the view expressed by this Court in Bachan Singh's case (supra)
and Machhi Singh's case (supra) we have no hesitation in holding that the case
at hand falls in rarest of rare category and death sentence awarded by the
trial Court and confirmed by the High Court was appropriate.
The appeal is dismissed.